Citation Nr: 0819877
Decision Date: 06/17/08 Archive Date: 06/25/08
DOCKET NO. 04-05 026 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Whether new and material evidence has been received to reopen
the claim of service connection for left knee disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Siobhan Brogdon, Counsel
INTRODUCTION
The veteran served on active duty from October 1953 to April
1956.
This appeal comes before the Department of Veterans Affairs
(VA) Board of Veterans Appeals (Board) from a May 2003 rating
action of the VA Regional Office (RO) in Chicago, Illinois
that declined to reopen the claim of entitlement to service
connection for a left knee disability.
By decision in February 2005, the Board declined to reopen
the claim of entitlement to service connection for a left
knee disability. The veteran appealed to the U.S. Court of
Appeals for Veterans Claims (Court). In an August 2005
Order, the Court vacated the Board's February 2005 decision
and remanded the matter to the Board for compliance with the
instructions contained in an August 2005 Joint Motion for
Remand of the Appellant and the VA Secretary (parties). The
Board remanded the case to the RO in November 2005 for
further development of the evidence.
The Board denied service connection for a left knee
disability by decision dated in November 2006. The veteran
once again appealed the denial to the Court. In a May 2007
Order, the Court vacated the Board's November 2006 decision
and remanded the matter to the Board for compliance with the
instructions contained in a May 2007 Joint Motion for Remand
by the parties.
The case was remanded by Board decision dated in August 2007.
That development having been completed, the appeal is once
more before the Board for disposition.
FINDINGS OF FACT
1. In an unappealed November 1998 rating decision, the RO
denied entitlement to service connection for a left knee
disability.
2. Evidence received subsequent to the November 1998 RO
determination, when considered by itself or together with
previous evidence of record, does not relate to an
unestablished fact necessary to support the claim of service
connection for left knee disability.
CONCLUSION OF LAW
1. The RO's November 1998 decision denying service
connection for a left knee disability is final. 38 U.S.C.A.
§ 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.104, 20.1103
(2007).
2. The evidence received subsequent to the RO's November
1998 decision is not new and material and the appellant's
claim of entitlement to service connection for left knee
disability is not reopened. 38 C.F.R. § 3.156 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran seeks to reopen the claim of entitlement to
service connection for left knee disability. He asserts that
he injured the left knee during service and has continuing
residuals of such for which service connection should be
granted.
Preliminary Considerations - VA' Duty to Assist the Veteran
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper notice from VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the claimant is expected to provide; and
(4) must ask the claimant to provide any evidence in her or
his possession that pertains to the claim in accordance with
38 C.F.R. § 3.159(b)(1). This notice must be provided prior
to an initial unfavorable decision on a claim by the agency
of original jurisdiction (AOJ). Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).
In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court
of Appeals for Veterans Claims clarified VA's duty to notify
in the context of claims to reopen. With respect to such
claims, VA must both notify a claimant of the evidence and
information that is necessary to reopen the claim and notify
the claimant of the evidence and information that is
necessary to establish entitlement to the underlying claim
for the benefit that is being sought. To satisfy this
requirement, the Secretary is required to look at the bases
for the denial in the prior decision and to provide the
claimant with a notice letter that describes what evidence
would be necessary to substantiate those elements required to
establish service connection that were found insufficient in
the previous denial.
Here, the VCAA duty to notify was fully satisfied in a letter
sent to the appellant in August 2007 that addressed all four
notice elements. The letter informed the appellant of what
evidence was required to substantiate the claim and of the
appellant's and VA's respective duties for obtaining
evidence. The appellant was also asked to submit evidence
and/or information in his possession to the AOJ.
Additionally, the statement of the case and the supplemental
statements of the case included the criteria for reopening a
previously denied claim, the criteria for establishing
service connection, and information concerning why the claim
was previously denied. Consequently, the Board finds that
adequate notice has been provided, as the appellant was
informed of what evidence is necessary to substantiate the
elements required to establish service connection.
The duty to notify the veteran was not fully satisfied prior
to the initial unfavorable decision on the claim by the AOJ.
Under such circumstances, VA's duty to notify may not be
"satisfied by various post-decisional communications from
which a claimant might have been able to infer what evidence
the VA found lacking in the claimant's presentation."
Rather, such notice errors may instead be cured by issuance
of a fully compliant notice, followed by readjudication of
the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed.
Cir. 2006) (where notice was not provided prior to the AOJ's
initial adjudication, this timing problem can be cured by the
Board remanding for the issuance of a VCAA notice followed by
readjudication of the claim by the AOJ) see also Prickett v.
Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a
fully compliant VCAA notification followed by readjudication
of the claim, such as an SOC or SSOC, is sufficient to cure a
timing defect).
In this case, the VCAA duty to notify was satisfied
subsequent to the initial AOJ decision by way of a letter
sent to the appellant in August 2007 that fully addresses all
four notice elements. The letter informed the appellant of
what evidence was required to substantiate the claims and of
the appellant's and VA's respective duties for obtaining
evidence. The appellant was also asked to submit evidence
and/or information in his possession to the AOJ. Although
the notice letter was not sent before the initial AOJ
decision in this matter, the Board finds that this error was
not prejudicial to the appellant because the actions taken by
VA after providing the notice have essentially cured the
error in the timing of notice. Not only has the appellant
been afforded a meaningful opportunity to participate
effectively in the processing of her or his claim and given
ample time to respond, but the AOJ also readjudicated the
case by way of a supplemental statement of the case issued in
April 2008 after adequate notice was provided. For these
reasons, it is not prejudicial to the appellant for the Board
to proceed to finally decide this appeal as the timing error
did not affect the essential fairness of the adjudication.
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S.
Court of Appeals for Veterans Claims held that, upon receipt
of an application for a service-connection claim, 38 U.S.C.
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating, or is necessary to substantiate, each of the
five elements of the claim, including notice of what is
required to establish service connection and that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
In this case, service connection is being denied. Therefore,
no rating or effective date will be assigned with respect to
the claimed condition.
The Board finds that VA has made the required efforts to
assist the appellant in obtaining the evidence necessary to
substantiate the claim of whether new and material evidence
has been received to reopen the claim of service connection
for left knee disability. Private and VA clinical records
have associated with the claims folder. A VA examination was
conducted in January 2004. The appellant does not contend
that there is outstanding evidence that has not been
considered. The Board finds that further assistance from VA
would not aid the veteran in substantiating the claim.
Therefore, VA does not have a duty to assist that is unmet
with respect to the issue of whether new and material
evidence has been received to reopen the claim of service
connection left knee disability. See 38 U.S.C.A. § 5103A (a)
(2); see also Soyini v. Derwinski, 1 Vet. App. 540, 546
(1991). The claim is ready to be considered on the merits.
Law and regulations
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. § 1131 (West 2002 & Supp.
2007); 38 C.F.R. § 3.303 (2007). To establish service
connection, there must be evidence of an etiological
relationship between a current disability and active military
service. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992),
citing Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service or aggravated by service. 38 C.F.R.
§§ 3.303, 3.306 (2007).
Factual background and legal analysis
The record reflects that the RO initially denied entitlement
to service connection for left knee disability by rating
action dated in November 1998. The appellant did not file a
timely appeal and this determination became final. See 38
C.F.R. § 20.1103. He attempted to reopen his claim for such
in correspondence received in December 2002. As the November
1998 RO decision was the last final disallowance, the Board
must review all of the evidence submitted since that action
to determine whether the appellant's claim of entitlement to
service connection for a left knee disorder should be
reopened and re-adjudicated de novo. See Evans v. Brown, 9
Vet. App. 273 (1996). A claim that is the subject of a final
decision can only be reopened upon the submission of new and
material evidence. 38 U.S.C.A. § 5108 (West 2002 & Supp.
2007).
The Board points out that 38 C.F.R. § 3.156(a) which defines
new and material evidence was amended in 2001 and is
applicable to claims to reopen filed on or after August 29,
2001. See 66 Fed. Reg. 45620 (2001). The amended version of
38 C.F.R. § 3.156 applies in the instant case as the
appellant's claim to reopen was received after August 2001.
New evidence is defined in 38 C.F.R. § 3.156(a) (2007) as
evidence not previously submitted to agency decision makers.
Material evidence means existing evidence that, by itself or
when considered with previous evidence of record, relates to
an unestablished fact necessary to substantiate the claim.
New and material evidence can be neither cumulative nor
redundant of the evidence of record at the time of the last
prior final denial of the claim sought to be reopened, and
must raise a reasonable possibility of substantiating the
claim. In determining whether evidence is new and material,
the "credibility of the evidence is to be presumed." Justus
v. Principi, 3 Vet. App. 510, 513 (1992).
The evidence of record at the time of the 1998 RO decision
denying entitlement to service connection for left knee
disability consisted of service medical records that showed
no complaints, treatment or reference to a left knee injury
or condition. When examined for separation from service in
April 1956, the lower extremities were evaluated as normal
and no pertinent defect was recorded. On post service VA
special orthopedic examination in August 1957, no complaints
or findings referable to a left knee disorder were recorded
Evidence added to the record following the RO's 1998 denial
of the claim of service connection for left knee disability
consists of duplicate service medical records showing
treatment for right foot injury, a VA outpatient X-ray report
dated in November 2002 showing degenerative changes of the
left knee, and possible joint effusion, the report of a VA
examination in January 2004 showing some deformity of the
left knee, and a certification for a handicap parking placard
dated in August 2006 showing a diagnosis of degenerative
joint disease with severe balance and gait deformity signed
by a physician. The veteran also submitted statements
attesting to injury to the left knee in service with his
opinion to the effect that current left knee disability was
attributable thereto. A statement was also received in
September 2007 from a former fellow service member relating
that he had known that appellant since childhood. He stated
that during a basketball game shortly after service, he
noticed that the appellant's game was not as aggressive as he
had known it to be, and that when teased about this, the
veteran told that he had injured the knee while overseas in
service. The affiant further added that based on his
observations, some event detrimental to the left knee
occurred between January 1954 and the spring of 1956 upon the
veteran's return from his overseas tour of duty.
The Board finds in this instance that while pertinent
evidence received since the November 1998 rating decision is
new in the sense that it was not previously of record, it is
not "material" to the facts of this case. There is still no
clinical evidence that supports a finding that the veteran's
current left knee disability had its onset during service.
No service medical records reflect evidence of left knee
injury, treatment or complaints, nor is it demonstrated that
the veteran reported a left knee problems on post service VA
orthopedic examination in August 1957. The clinical evidence
of record shows a left knee diagnosis many years after
discharge from active duty. There is no competent post
service evidence that attributes left knee disability to any
incident of service. The veteran and his affiant's
statements have been carefully considered. However, as
laypersons, they cannot support the claims on the basis of
their assertions alone on a medical matter. See Bostain v.
West, 11 Vet. App. 124, 127 (1998), citing Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown,
10 Vet. App. 183, 186 (1997).
In this regard, the Board would also point out that should
the appellant obtain clinical evidence that supports a nexus
between service and a current left knee disorder, VA would be
obligated to reconsider this matter. However, the additional
information obtained since the November 1998 RO decision,
when considered alone or with previously submitted evidence,
does not relate to an unestablished fact necessary to
establish the claim. It is therefore not material to reopen
the claim.
In summary, the Board finds that the preponderance of the
evidence is against the claim. The veteran's application to
reopen the claim of service connection for left knee
disability is denied.
ORDER
New and material evidence has not been received to reopen the
claim of entitlement to service connection for a left knee
disability
____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs